Rolling the dice, jurywise, pays off ACQUITTAL

June 23, 1991|By M. Dion Thompson

In early March 1988, Gregory Delmore noticed his friend, Clinton Butler, was wearing new clothes. That was odd because Butler, who at the time listed his address as the downtown Rescue Mission, had worn the same clothes for weeks. But on this day, Butler sported a new sweat suit and tennis shoes.

Mr. Delmore later testified in Circuit Court that Butler said he and another man had robbed a cab driver, murdered her and split the proceeds. Butler supposedly spent his share on clothes. This may or may not be true: Butler was never convicted of the March 2, 1988, murder of Karen Renee Smith, even though his co-defendant, Dennis Wahls, told two juries the murder was Butler's idea.

There are no sure cases. Time and again prosecutors leave courtrooms shaking their heads, while the once-accused smile and congratulate the defense attorneys. In 1988, this happened in nearly half of all the murder cases brought to trial.

Often, there were holes in the state's case and the defeat was understandable. Then there are cases like Butler's which seem sure winners to prosecutors but are fraught with intangibles, not the least of which are the 12 people who hear the case and the witnesses who tell what they know.

Wahls, whom police found through an anonymous tip to Metro Crime-Stoppers, had jewelry belonging to Ms. Smith. He pleaded guilty to first-degree murder and was sentenced to life in prison. His confession led police to Butler, who calmly denied knowing Wahls or having any knowledge of the crime.

Prosecutors thought they had a strong case. There was Wahls' eyewitness account and Mr. Delmore's tale. Only one of the 12 jurors empanelled for Butler's first trial thought he was involved in the murder. The trial ended in a hung jury.

At the second trial, the state bolstered its case with a jail officer who said that as he escorted Butler to the courthouse lockup one day, Butler damned Wahls for going to the police and said police had nothing on him until Wahls talked. Butler also allegedly said he beat Ms. Smith because she didn't give him some money she'd hidden in her sock. This time Butler was acquitted.

Prosecutors found the defeat inexplicable.

"There are cases where juries have an unreasonable expectation of what evidence will be presented," said Timothy J. Doory of the violent crimes unit. "It is possible for them to set an unattainable standard. In the Clinton Butler case, that was a very strong case, particularly the second time around."

A dozen Baltimoreans didn't think so.

During the trial, Butler seemed totally disinterested, casually cleaning his eyeglasses and fingernails, while Wahls fumed and cursed on the witness stand. Wahls had pleaded guilty rather than risk a trial conviction and a possible life without parole sentence. Butler rolled the dice at trial and left court a free man.

"I think [juries] tend to be put off by a co-defendant who is going to testify because there is a perception that the co-defendant has cut a deal in order to save their own skin," said Ara Crowe, the trial division chief. "But it is a necessary evil that we as prosecutors have to deal with. I mean, who knows more about the crime than a person who was there."

M. Gordon Tayback, who defended Butler, said he attacked Wahls' credibility and his reasons for testifying.

"He's a defendant trying to work a deal for himself, and I riled him up," Mr. Tayback said. "It's a tactic I like to use with people, especially like him, who are boiling under the surface."

Perhaps that's what the jurors did. Mark G. Moreland, an alternate on the second jury, didn't vote on Butler's guilt or innocence, but if he had, he said would have voted for acquittal. He said he was concerned with the credibility of the state's witnesses. The jail officer didn't immediately tell authorities what he heard and had to be compelled to testify. Then, there was Wahls.

"I think he was trying to save his neck," said Mr. Moreland. "They had so much on [Wahls], that I think that they got the right guy."

Despite being acquitted, Butler's freedom was short-lived. In October 1990, he was sentenced to 18 months for theft, which violated a probation he'd received for carrying a deadly weapon. Last month, a city Circuit Court judge gave him an additional two years in prison.